On the Merits

Kevin Lewis

May 17, 2023

How accurate are rebuttable presumptions of pretrial dangerousness? A natural experiment from New Mexico
Cristopher Moore, Elise Ferguson & Paul Guerin
Journal of Empirical Legal Studies, forthcoming 


In New Mexico and many other jurisdictions, judges may detain defendants pretrial if the prosecutor proves, through clear and convincing evidence, that releasing them would pose a danger to the public. However, some policymakers argue that certain classes of defendants should have a "rebuttable presumption" of dangerousness, shifting the burden of proof to the defense. Using data on over 15,000 felony defendants who were released pretrial in a 4-year period in New Mexico, we measure how many of them would have been detained by various presumptions, and what fraction of these defendants in fact posed a danger in the sense that they were charged with a new crime during pretrial supervision. We consider presumptions based on the current charge, past convictions, past failures to appear, past violations of conditions of release, and combinations of these drawn from recent legislative proposals. We find that for all these criteria, at most 8% of the defendants they identify are charged pretrial with a new violent crime (felony or misdemeanor), and at most 5% are charged with a new violent felony. The false-positive rate, that is, the fraction of defendants these policies would detain who are not charged with any new crime pretrial, ranges from 71% to 90%. The broadest legislative proposals, such as detaining all defendants charged with a violent felony, are little more accurate than detaining a random sample of defendants released under the current system, and would jail 20 or more people to prevent a single violent felony. We also consider detention recommendations based on risk scores from the Arnold Public Safety Assessment (PSA). Among released defendants with the highest risk score and the "violence flag," 7% are charged with a new violent felony and 71% are false positives. We conclude that these criteria for rebuttable presumptions do not accurately target dangerous defendants: they cast wide nets and recommend detention for many pretrial defendants who do not pose a danger to the public.

Overworking Public Defenders
Aviv Caspi
Stanford Working Paper, May 2023 


Most U.S. criminal defendants are represented by government-employed public defenders (PDs). PDs consistently face higher caseloads than recommended by professional guidelines, but systematic evidence of the impacts of excessive workloads on defendants is lacking. This paper uses novel case-level data from three U.S. counties and an instrumental variable approach to study the causal impacts of high caseloads on PD time allocations and defendant outcomes. I exploit variation in case assignment timing, which can lead to unexpected increases in PD workloads, to instrument for workloads and find that an increase in workload does not change the probability of an acquittal/dismissal but lengthens an average sentence, conditional on conviction, significantly. Depending on the county, shifting a given PD from the 25th to the 75th percentile of their workload lengthens sentences by 93-101%. I observe PDs shifting time away from misdemeanors and low-severity felonies when caseloads increase to maintain the time they spend on high-severity felonies. I also find suggestive evidence that outcomes are worse for minority, particularly Hispanic, defendants. Taken together, my findings suggest PD overwork negatively affects the fairness of the legal system across multiple dimensions, and jurisdictions that invest in reducing PD caseloads can expect to more than offset those costs in reduced spending on incarcerations. According to my estimates, every dollar spent hiring an additional PD in Berrien County, Michigan would save $6.31 in short-term incarceration costs.

Sex, Politics, and U.S. District Court Outcomes: Examining Variation in Judge-Initiated Downward Guideline Departures
Matthew Crow & Natalie Goulette
American Journal of Criminal Justice, April 2023, 295-318 


Disparity in sentencing outcomes continues to garner considerable attention in the research literature. Much of the extant literature focuses on the impact of case-level, and to a lesser extent, court-level characteristics on individual sentencing outcomes. At the federal level, recent research by the United States Sentencing Commission (USSC), however, demonstrates significant disparity across U.S. District Courts in aggregate-level outcomes. Specifically, there is considerable disparity in the rates of judge-initiated guidelines departures across U.S. District Courts. The current study examines whether judicial composition and caseload characteristics impact this disparity using panel data. Results indicate that judicial sex and political composition of districts influence judge-initiated guidelines departure rates.

Congressional Constraint? The Review of In Absentia Immigration Removal Orders in Federal Circuit Courts
Christina Boyd et al.
Political Research Quarterly, forthcoming 


Within the politically charged immigration system in the United States, Congress mandates the entry of in absentia removal orders against immigrants who fail to appear for immigration court hearings. Statutory guidance similarly constrains the ability of appellate courts to overturn those in absentia orders. In this article, we examine how federal circuit court judges make decisions in the review of in absentia orders when faced with discretion-revoking congressional statutory language pitted against a highly politicized area of law where policy preferences sit at the forefront of judges' minds. Using an original dataset of U.S. Courts of Appeals cases decided from 2001 to 2020, we find that pro-immigrant decisions are rare, as intended by the governing statute. We also find, however, that judicial policy preferences predict the degree to which federal judges support the petitioning immigrant through statutory factors related to the adequacy of government notice and the presence of exceptional circumstances to justify nonappearance.

When Advocates Become Adjudicators: Tracing the Effects of Prosecutorial and Public Defense Experience on Judicial Decision Making
Banks Miller & Brett Curry
American Politics Research, forthcoming 


We assess the influence professional background -- specifically, having been a prosecutor or a public defender -- exerts on decision making by federal district court judges. Focusing on search and seizure cases, we analyze nearly 1500 motions to suppress evidence from 2000 to 2022. In addition to controlling for judicial ideology and a judge's prior experience as a prosecutor or public defender, we utilize matching to address endogeneity concerns related to one's ability to self-select into one of these positions -- which may itself be influenced by that individual's ideological predispositions. We find that having been a former prosecutor, as well as the length of time that service spans, makes a judge significantly more likely to rule against a motion to suppress. Former public defenders are significantly more likely to grant that suppression motion, though their propensity to do so is not affected by the length of time served in that capacity.

Political Polarization and Judicial Selection
Tinghua Yu & Elliott Ash
Journal of Political Institutions and Political Economy, February 2023, Pages 1-27 


This paper explores how political polarization among voters influences the quality of elected officials, with a focus on judges. In our model, legal professionals decide between staying in their current legal careers or running for judicial office. Intrinsically motivated legal professionals derive inherent satisfaction from practicing law. This has two implications: first, individuals with higher intrinsic motivation prefer to spend time on their current careers over electoral campaigning; second, if elected, they exert more effort on the bench. In a polarized electorate, voters decide mainly on candidates' party affiliations, reducing electoral campaign effort in equilibrium. Hence under higher polarization among voters, candidates with higher intrinsic motivation are more likely to run for office and to get elected -- increasing judicial decision quality. We take the predictions to data on the performance of all U.S. state supreme court judges working between 1965 and 1994. We find that in states with partisan judicial elections, judges who joined the court when polarization was high write higher-quality decisions (receiving more citations from other judges) than judges who joined when polarization was low.

An empirical analysis of sentencing of "Access to Information" computer crimes
James Graves & Alessandro Acquisti
Journal of Empirical Legal Studies, forthcoming 


There is a widespread perception that computer crime sentencing is too harsh. But this criticism has occurred in the absence of comprehensive, multi-year data on how computer crimes are actually sentenced and how those sentences compare to other, purportedly similar crimes, such as trespass, burglary, or fraud. This article uses an analysis of real-world sentencing data to examine how the computer crimes are actually sentenced. We combined court filings and U.S. Sentencing Commission data files to build a custom data set of 1095 Computer Fraud and Abuse Act (CFAA) sentences from 2005 through 1998. Our results show that CFAA sentences are sentenced differently from trespass, burglary, or non-CFAA fraud crimes; that sentences in which the defendant exceeded authorized access have declined over the years; and that the "sophisticated means" and "special skills" enhancements have been less routinely applied than has been assumed. These results have policy implications for how CFAA crimes are sentenced.

Judge ideology and debt contracting
Thomas Kubick, Brandon Lockhart & David Mauer
Journal of Banking & Finance, forthcoming 


We examine the effect of ex ante litigation risk on the price and non-price terms of loan contracts. Since expected litigation is endogenous, we focus on federal circuit court judge ideology to generate plausibly exogenous variation in the outcome of a class action lawsuit. We find that loans issued by firms headquartered in circuits with a higher likelihood of drawing a liberal panel of judges in a class action lawsuit have higher loan spreads, shorter maturity, and a larger number of and more restrictive covenants. To strengthen our claim that judge ideology affects loan contracting through its effect on the outcome of a class action lawsuit, we show that the influence of judge ideology on price and nonprice terms of loans is strongly influenced by factors that influence the probability of a class action lawsuit. Overall, our results bolster the case that litigation risk has a causal effect on debt contracting.

Is the Patent System Sensitive to Incorrect Information?
Janet Freilich & Soomi Kim
MIT Working Paper, August 2022 


We investigate whether participants in the patent system are sensitive to information quality by examining how they treat inaccurate information. We use a novel approach to identify patents with inaccurate information: patent-paper pairs where the paper has been retracted and the corresponding patent contains the retracted material. Despite containing inaccurate information, we find that these patents are prosecuted and maintained by most applicants, are not rejected by examiners, and continue to be cited by some downstream readers after retraction. Insensitivity to inaccurate information may lead to erroneous decisions during examination and has implications for patent quality, disclosure, and knowledge flows.

Sue and Acquire: Evidence from Patent Lawsuits
Yifang Xie & Biwen Zhang
Georgetown University Working Paper, March 2023 


We investigate whether and how firms strategically launch patent lawsuits against competitors to facilitate future acquisitions of the same firm, a practice we define as sue-and-acquire. We find a heightened likelihood of mergers and acquisitions after the filing of a patent lawsuit. Notably, the sue-and-acquire practices are particularly pronounced when the initial patent lawsuit is likely to be strategically motivated, namely, (i) when the plaintiff and defendant firms more directly compete in a product market, (ii) when the lawsuit is filed in the Eastern District of Texas, a venue characterized by a high concentration of strategic patent lawsuits, and (iii) in IT and patent thicket industries, where strategic patent lawsuits are more common. Additional analyses of market responses to the acquisition announcements reveal that suing-and-acquiring firms benefit from the practice, and part of the benefit stems from reduced product competition. Lastly, we find some evidence that sue-and-acquire plaintiffs are less likely to prevail in courts, further confirming that sue-and-acquire lawsuits are less driven by the merits of the patent disputes and more likely to be strategically motivated. Overall our findings suggest that firms exploit the patent legal system to eliminate competition, a practice that should be of interest to patent and anti-trust regulators.

Decisionmaking in Patent Cases at the Federal Circuit
Jason Reinecke
Washington and Lee Law Review, forthcoming 


This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2708 panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases, and provides insight into judicial decisionmaking more generally. For example, the results show that, in the aggregate, patent-related ideology plays a role in voting and decisionmaking at the Federal Circuit -- that is, some judges are more likely to vote in a pro-patentee direction than others. This patent ideology is not explained by political affiliation, nor is it significantly explained by the judges' prior patent-related experience. The former observation undercuts the assumption made by scholars that if political affiliation does not predict voting in an area of law, then that area of law must either be clear and binding, or there must be a near-consensus about the appropriate principles. The results also indicate that decisionmaking at the Federal Circuit is influenced by panel effects, which refer to changes in judges' voting patterns based on the preferences of the other judges on the panel. The study exemplifies how prevalent panel effects can be in an area of law, considering they persist in patent cases at the Federal Circuit despite several reasons to believe panel effects may not exist. This study also compares decisionmaking in precedential, nonprecedential, and summarily affirmed cases and finds that voting and decisionmaking is most influenced by patent ideology in precedential cases. Prior studies of judicial decisionmaking in other circuit, which typically focus exclusively on precedential cases, thus may generally overstate the impact of ideology on judicial decisionmaking. Furthermore, the results support that judges do not appear to use summary affirmances as a tool to systematically bury cases opposing their patent ideology. To the contrary, decisionmaking in summarily affirmed cases is largely, if not entirely, not influenced by patent ideology. And judges are not more likely to summarily affirm cases coming out against their patent ideology, when considered as a fraction of the total number of opportunities to issue a summary affirmance. The results also show that judges tend to write a disproportionate share of opinions favoring their patent ideology. As a result, there is greater risk than previously recognized that the law will develop to reflect the idiosyncratic preferences of a few judges and that opinions will be written ideologically.

What advice do parents give their children about plea bargains? Understanding the role of parent race, attorney race, and attorney recommendations 
Aliya Birnbaum & Emily Haney-Caron
Journal of Ethnicity in Criminal Justice, forthcoming 


This study examined parent acquiescence to attorney recommendations in plea bargain decisions, and the effect of racial similarity between an attorney and their juvenile client's parent. Scholarship indicates that youth are vulnerable to the influence of authority figures in plea-bargaining, leading to a reliance on parental and attorney input for plea decisions. Parents read a vignette with attorney's race manipulated, imagining they are participating in the plea-bargaining process and the attorney is giving them recommendations regarding how to plea. Results show White parents were more likely to take a plea and had more trust in the attorneys. Black attorneys were found to be most trustworthy, especially for White parents. Parent race impacted plea advice acquiescence more than attorney/parent racial similarity.


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